Ratzer v. Burlington, C. R. & N. Ry. Co. . IV , B. the transit had continued, pledged, in the usual course of business, to an innocent pledgee, for value. Held, the latter railway company is liable to the pledgee for failure to deliver the goods at the place of destination, and is estopped from showing such intermediate delivery to the shipper. APPEAL from Hennepin county district court. J. F. McGee, for appellant. A. E. Clarke and W. F. Booth, for respondent. Reversed. CANTY, J.-The Morrison Grain & Lumber Company shipped three car loads of oats, two from Britt, and one from Forrest City, Iowa, to New York City. One of these cars was shipped on January 5, and the other two on January 7, 1895. A bill of lading was issued for each car by the initial carrier. In each bill the shipper is named as consignee, with the addition, Notify John Ratzer;" and the destination named is New York City. The initial carrier transported the cars to Livermore, Iowa, and there delivered them (with proper waybills, showing New York to be the destination) to the defendant, the next connecting carrier, with whom and a subsequent carrier it had through traffic arrangements. The defendant carried the cars on its line towards their destination until they reached Morrison, Iowa, on January 8th or 9th, and there delivered all of the oats (of the value of $1,336) to the shipper, on its demand, without requiring a surrender or cancellation of the bills of lading. The shipper at this point converted the oats to its own use. Within a day or two after the oats were so delivered at Morrison, the shipper indorsed each of the bills of lading, "Deliver to the order of John Ratzer," and signed them. The shipper also drew drafts on said Ratzer, this plaintiff, in favor of the Bank of Reineck, for the amount of the purchase price of the oats, attached the drafts to the bills of lading, and delivered all of the same to the bank, who cashed the drafts in good faith, in the regular course of business, relying on the attached bills of lading. The bills of lading were, in the regular course of business, forwarded by the bank to New York, and presented to Ratzer, a commission merchant, there, dealing in grain, who on January 14 and 16, 1895, in the regular course of business, paid the drafts in good faith, relying on the attached bills of lading, which he then and there received. If the three cars of oats had continued to New York, their destina Cas . & Eng Ratzer v. Burlington, C. R. & N. Ry. Co. tion, in the usual course of transportation, they would have arrived there between January 23d and 30th. The shipper, the Morrision Company, is wholly insolvent. Plaintiff brought this action to recover $804.94, the amount so advanced by him on the faith of the bills of lading. The case was tried by the court below, without a jury. The court found all of the foregoing facts, and thereon ordered judgment for defendant. From the judgment entered thereon, plaintiff appeals, and urges, as a ground for reversal, that the judgment is not sustained by the findings of fact. We are of the opinion that, on the facts found, the plaintiff is entitled to judgment. A vast portion of the produce of this country is moved from the argicultural districts to the commercial centers and the seaboards by the aid of advances made on the security of such bills of lading. A well-established custom has grown up in commercial circles by which such bills of lading are treated as the symbols of title to the property in transit, are taken as security for money advanced, and indorsed and delivered as a transfer of the property. This is well understood by the railroad companies and every one else. To allow the railroad companies to ignore this custom would be to destroy the custom itself. This would cause great hardship, revolutionize business methods, and drive all buyers and shippers of small means out of the business, as they could no longer give ready and available security on commodities in transit, and thereby turn their limited capital sufficiently quick and often to enable them to do much business. This, in turn, would destroy competition, and leave the business in the hands of a few concerns with unlimited capital. Neither have the railroad companies any right to ignore this custom. On the contrary, it must be held that these companies have been doing business with reference to this custom as much as the shippers themselves and the consignees, banks, commission merchants, and others who are continually advancing money on the faith of the security of these bills of lading. The effect of this custom, independent of section 7649, Gen. St. 1894, is to make bills of lading to some extent and for some purposes negotiable, and to give superior rights to innocent transferees for value in the usual course of business. It is hardly necessary to cite authorities to the general propsition that, when a bill of lading is outstanding, the railway company delivers the goods at its peril, without a pro Ratzer v. Burlington, C. R. & N. Ry. Co. . IV (N. B. duction of the bill of lading; and, if it so delivers them to some one other than the bona fide holder for value of the bill of lading, it is liable to him for conversion of the goods. What limitations or exceptions there may be to this rule we need not now consider. The following authorities show the universality of the rule as applied to transportation both on land and by water. See The Thames, 14 Wall. 98; North v. Transportation Co., 146 Mass. 315; Forbes v. Railway Co., 133 Mass. 154, 9 Am. & Eng. R. Cas. 80; Furman v. Railway Co., 106 N. Y. 579, 32 Am. & Eng. R. Cas. 500; City Bank v. Rome, W. & O. Ry. Co., 44 N. Y. 136; Railway Co. v. Stern, 119 Pa. St. 24, 35 Am. & Eng. R. Cas. 551; Boatmen's Sav. Bank v. Western & A. R. Co., 81 Ga. 221; National Bank v. Atlanta & C. Air Line R. Co., 25 S. C. 216; Midland Nat. Bank v. Missouri Pac. R. Co. (Mo.) 33 S.W. 521; Armentrout v. Railway Co., 1 Mo. App. 158; Gates v. Railway Co. (Neb.) 60 N. W. 583; Garden Grove Bank v. Humeston & S. R. Co., 67 Iowa 526; Tindall v. Taylor, 4 El. & Bl. 219. See also, as bearing on the question: Halsey v. Warden, 25 Kan. 128; Meyerstein v. Barber, L. R. 2 C. P. 38; Lee v. Bowen, 5 Biss. 154, Fed. Cas. No. 8,183; Heiskell v. Bank, 89 Pa. St. 155; Bass v. Glover, 63 Ga. 745; Bank v. Dearborn, 115 Mass. 219; Dows v. Bank, 91 U. S. 618; Conard v. Insurance Co., 1 Pet. 386; Weyand v. Railway Co., 75 Iowa 573, 9 Am. St. Rep. 512, note. In the case of National Bank v. Chicago, B. & N. R. Co., 44 Minn. 224, it was held that the railroad company was not liable to the pledgee of the bill of lading. This was held solely on the ground that, as no grain was delivered to the agent of the railroad company when he delivered the bill of lading, he had no authority to issue it, and the company was not liable. That question is not involved in this case. Respondent contends that the consignee is only obliged to produce the bill of lading, but not to surender it when receiving the goods; and that as the Morrison Company held the bill of lading when the oats were delivered to it in transit, and it did not negotiate the bill of lading until afterwards, the defendant is not liable for so delivering the oats without requiring a surrender of the bill of lading. Whether or not the carrier can compel a surrender of the bill of lading when it delivers the goods it is not necessary here to decide. If . & Eng Cas Ratzer v. Burlington, C. R. & N. Ry. Co. the holder of the bill of lading insists on retaining it as a muniment of title, or for any other purpose, and has a legal right to do so, he can, at least, be required to produce it for cancellation, so that it will cease to be on its face a live bill of lading. And, in our opinion, it was the duty of the defendant at least to require this. It is immaterial that these bills of lading were negotiated to the bank and plaintiff after the oats were so delivered to the shipper. The bills were so negotiated before they had become stale, and even a considerable length of time before the oats would, in the ordinary course of transportation, have arrived at New York, their destination. The defendant permitted these bills to remain outstanding, with all the appearances of live, valid bills of lading. There was nothing to put any one dealing with the Morrison Company on his guard. The facts in the case are quite similar to those in the case of Railway Co. v. Johnston, (Neb.) 63 N. W. 144, where the defendant was held liable though the grain was delivered in transit at an intermediate point before the bills of lading were negotiated. In the case of Wells v. Railway Co., 32 Fed. Rep. 51, the railway company was also held liable to the pledgee of the bill of lading for delivering the goods to the shipper in transit. In Armentraut v. Railway Co., supra, the railway company was held liable to the transferce of the bill of lading for delaying the transportation at the request of the shipper for a few days after it had issued the bill, thereby causing damage to the goods. In Tindall v. Taylor, supra, it was held that after the carrier had received the goods and issued a bill of lading for them to the shipper, and before the transit had commenced, it was not liable for refusing to redeliver the goods to him. without a surrender of the bill. It was the duty of the defendant to see that the bills of lading were canceled when it redelivered the oats to the shipper, and its failure to perform that duty enabled the shipper to perpetrate a fraud on the bank and plaintiff. It is a case, for the application of the doctrine of equitable estoppel, that, where one of two innocent persons must suffer by reason of the fraud of a third party, he by whose negligent act or omission such third party was enabled to commit the fraud ought to bear the loss. Under this rule, the defendant is estopped from showing that it delivered the goods to the shipper at the intermediate point, O'Connell v. St. Paul City R. Co. . IV S. and is liable to plaintiff for failure to deliver them to him at the place of original destination. This disposes of the case. The judgment is reversed, and judgment ordered for plaintiff, pursuant to this opinion. O'CONNELL v. ST. PAUL CITY R. Co. (Supreme Court of Minnesota, May 21, 1896.) Attempt to Cross in Front of Moving Street Car.-Where plaintiff attempted to drive in front of a street car moving 12 miles per hour, and only 40 feet away, held that he could not recover for injuries resulting from a collision. APPEAL from Ramsey county district court. Reversed. COLLINS, J.-This action grew out of a collision on Selby avenue, in St. Paul, between plaintiff, who was driving a horse, attached to a wagon, in an easterly direction, and a grip car running westerly on defendant's cable line. The negligence attributed to defendant, according to the complaint, was in maintaining, at the point in question, a cable slit of an unusual and dangerous width and construction, in which plaintiff's horse caught his foot, and, while so caught, the employé in charge of the grip car ran into him, causing the injuries complained of. By the answer it was alleged that the injuries were caused solely because the horse suddenly and unexpectedly turned from his course, and jumped directly in front of the grip car as it was being propelled along the rails in the usual and ordinary manner. It was also alleged that the slit was not unusually or dangerously wide, or of unusual or dangerous construction, and, further, that the horse was not caught in the slit. At the trial two special questions were submitted to the jury,-the first, was the horse caught in the cable slit? the second, did the horse suddenly |